Thursday, 23 April 2015

Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis

Steve Peers

Yesterday the EU
leaders, in the European Council, adopted a policy for addressing the
recent crisis of large-scale migrant death tolls crossing the Mediterranean. It
builds upon the recent 10-point plan adopted by ministers (discussed here),
but builds upon it in some respects. There were also some interesting
last-minute changes to the earlier draft of the text (all of which are
shown in the annex below), indicating leaders’ real priorities.

Detailed comments

At first sight,
the leaders’ statement shows more compassion than the 10-point plan, referring
to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent
more people from dying at sea’. To this end, there is a specific commitment to triple
the funds for ‘search and rescue’ as regards existing EU operations. However,
this is only ‘within the mandate of Frontex’ – and the head of the EU border
agency has stated that this agency does not really have a search and
rescue role.

It should be noted
that since these operations are coordinated by Frontex, detailed rules of EU
law will apply (discussed here) will apply. These rules do allow, in
some cases, for returns of migrants directly from their rescue to non-EU
countries – as long as those countries are safe. It is unlikely that in the
current situation, Libya would qualify as safe.

The destruction of
traffickers’ vessels ‘before they are used by traffickers’ seems to suggest
some Minority Report style
precognisance of the future use of the boats, considering that traffickers do
not paint logos on the side of their boats like ferries or shipping companies. This
is also qualified by a reference to compliance with international law. It may
be questioned whether this action will legally be a foreign policy operation
(as the leaders assume), given the approach to EU law taken in a recent CJEU opinion
concerning the EU’s anti-pirates operation (discussed here).

As compared to the
10-point plan, there is a reference to Interception of communications, and a
very brief reference to the root causes of the problem (conflict in countries
of origin, as well as Libya). The EU leaders took out a reference to stopping
migrants making it to the Mediterranean shores, but it’s obvious that this is
the main intention of stepping up cooperation with sub-Saharan countries.

There’s an added
stress on readmission treaties, including with countries of transit; this
refers implicitly to EU readmission treaties with North African states (not
Libya) currently under negotiation. There are also two added references to the right
to asylum and EU asylum law, confirming that the EU leaders do not intend to simply
return migrants without considering their claims. Some press reports had
erroneously suggested an intention to return many thousands of migrants without
considering claims, but if migrants make it to EU waters or land, it would be
illegal to return them without examining their claims under EU law. Migrants
can be returned to countries of origin or transit if their asylum claims are
unfounded, as long as those countries are safe. Again, returning migrants to
Libya would, under current circumstances, breach EU and human rights law as
long as that country does not appear safe.

As compared to the
10-point plan, it appears that the intention is not to fingerprint all
migrants, but only those applying for asylum; this simply re-iterates
long-standing EU law. More generally, the plan says little about safe passage,
removing the original (and puny) target number of 5,000 resettlement places,
and not referring to other forms of safe passage instead. (While it would be
difficult to issue humanitarian visas in Libya, it would be possible to offer
this option - discussed further here - in other States). Equally, there is little practical solidarity
with frontline states; other Member States offer cash and help with processing
and return, but weakened any significant commitment to relocate people from
those frontline States.

There is an immediate commitment to issue a ‘roadmap’
next week, pre-empting the Commission’s agenda-setting role (its strategy paper
is due in May). However, the role of the European Parliament may still prove
significant, since it must approve any funding decisions or changes in
legislation.

Conclusions

Overall, the new commitment
to search and rescue is welcome, although it is qualified in light of Frontex’s
limited powers. The desire to address root
causes is good but seems half-hearted, and this is easier said than done. A more
ambitious strategy regarding the processing of asylum claims in non-EU transit states
is probably necessary in the medium term, but neither the EU leaders nor asylum
NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’
boats is subject to legal and practical constraints, and will be almost literally
a drop in the ocean. The summit result is frankly pathetic as regards safe
passage of migrants, ensuring that they avoid the risk of the crossing
altogether, and it is marginal as regards assistance to frontline Member
States.

On the whole,it
seems that the leaders want to do as little as possible to change the current
approach to dealing with the crisis. Similar to their method of dealing with
the euro crisis, this looks like a short-term patch-up that offers less than
first appears, which will probably have to be revisited soon.

Photo credit:
Kenneth Roth

Barnard &
Peers: chapter 26

Annex

Special meeting of the European Council, 23
April 2015 - statement

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text]

1. The situation in the Mediterranean is a
tragedy. The European Union will mobilise all efforts at its disposal to
prevent further loss of life at sea and to tackle the root causes of the human
emergency that we face, in cooperation with the countries of origin and
transit. Our immediate priority is to prevent more people from dying at sea.

2. We have therefore decided to strengthen
our presence at sea, to fight the traffickers, to prevent illegal migration
flows and to reinforce internal solidarity and responsibility. Given that
instability in Libya creates an ideal environment for the criminal activities
of traffickers, we will actively support all UN-led efforts towards re-establishing
government authority in Libya. We will also step up efforts to address conflict
and instability as key push factors of migration, including in Syria.

3. We today commit to:

Strengthening our presence at sea

a) rapidly reinforce EU Operations Triton
and Poseidon by at least doublingtripling the financial
resources for this purpose in 2015 and 2016 and reinforcing the number of assets,
thus allowing to increase the search and rescue possibilities within the mandate
of FRONTEX. We welcome the commitments already made by Member States which
will allow to reach this objective in the coming weeks;

Fighting traffickers in accordance with
international law

b) disrupt trafficking networks, bring the
perpetrators to justice and seize their assets, through swift action by Member
State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum
Support Office (EASO) and EUROJUST, as well as through increased intelligence
and police-cooperation with third countries;

c) undertake systematic efforts to identify,
capture and destroy vessels before they are used by traffickers;

d) at the same time, the High Representative
is invited to immediately begin preparations for a possible CSDP operation to
this effect, in accordance with
international law;

e) use EUROPOL to detect and request removal
of internet content used by traffickers to attract migrants and refugees, in
accordance with national constitutions;

Preventing illegal migration flows

f) increase support to Tunisia, Egypt,
Sudan, Mali and Niger among others, to monitor and control the land borders and
routes in order to prevent potential migrants from gaining access to
Mediterranean shores, building on current CSDP operations in the region, as
well as on regional cooperation frameworks (Rabat and Khartoum processes); step
up dialogue with the African Union at all levels on all these issues;

g) reinforce our political cooperation with
African partners at all levels in order to tackle the cause of illegal
migration and combat the smuggling and trafficking of human beings. The EU will
raise these issues with the African Union and the key countries concerned, with
whom it will propose the holding of a summit in Malta in the coming months;

h) step up cooperation with Turkey in view
of the situation in Syria and Iraq;

i) deploy European migration liaison
officers in key countries to gather information on migratory flows, co-ordinate
with national liaison officers, and co-operate directly with the local
authorities;

j) work with regional partners in building
capacity for maritime border management and search and rescue operations;

k) launch Regional Development and
Protection programmes for North Africa and the Horn of Africa;

l) invite the Commission and the High
Representative to mobilise all tools, including through development cooperation
and the implementation of EU and national readmission agreements with third
countries, to promote readmission of unauthorised economic migrants to
countries of origin and transit, working closely with the International
Organisation for Migration;

m) while respecting the right to seek
asylum, set up a new return programme for the rapid return of illegal
migrants from frontline Member States, coordinated by FRONTEX;

Reinforcing internal solidarity and
responsibility

n) rapid and full transposition and
effective implementation of the Common European Asylum System by all
participating Member States, thereby ensuring common European standards under
existing legislation;

o) increase emergency aid to frontline
Member States and consider options for organising emergency relocation between
all Member States on a voluntary basis;

p) deploy EASO teams in frontline Member
States for joint processing of asylum applications, including registration and
finger-printing;

q) set up a first voluntary pilot project on
resettlement across the EU, offering at least 5,000 places to persons
qualifying for protection.

4. The EU institutions and the Member States
will work immediately on the full implementation of these orientations. The
Presidency and the Commission will present next week a roadmap setting out work
up to June.

5. The European Council looks forward to the
Commission Communication on a European Agenda for Migration, in order to
develop a more systemic and geographically comprehensive approach to migration.
The European Council will remain seized of the situation and will closely
monitor the implementation of these orientations. The Council and the
Commission will report to the European Council in June.

A mass influx declaration would lead to the application of the temporary protection directive. I imagine it has not been used because while it may be good policy to openly accept thousands of migrants so that they don't have to risk the Mediterranean crossing, it's bad politics.

Steve, What you are saying is instead of allowing 5000 asylum seeker migrate to EU, better to wait for them board the trafficker’s boat, watch 4500 drown and then speed rescue the remaining 500—heroic act—better politics…We get it!!

I believe they dropped that proposal... The conclusions of the European Council did not mention any number specifically... They are indeed very abstract. I believe that in the 13th May the Commission will present a more specific approach. But I doubt that they'll have the courage to make use of the temporary protection directive...

Reinforcing the search and rescue (SAR) capacities within the mandate of FRONTEX is not a solution aimed to give an answer to all the questions related to illicit traffic of migrants by sea. EU countries in my opinion have to share the employment of their naval assets: a) to establish an effective SAR service in the "black hole" of the theoretical Libyan SAR zone (but the "place of safety" should be separated by the place of asylum's request); b) to launch a CSDP naval operation based on a mandate of MLE against the migrants smuggling and the traffic of human beings.